Wiretap case judge in possible conflict

August 23, 2006|By NEW YORK TIMES NEWS SERVICE

WASHINGTON --The federal judge who ruled last week that President Bush's wiretapping program was unconstitutional serves as a trustee and officer for a Detroit nonprofit group that has given at least $125,000 to the American Civil Liberties Union in Michigan, one of the plaintiffs in the high-profile case.

Judicial Watch, a conservative group in Washington that first discovered the financial connection, charged yesterday that the relationship poses a possible conflict for the judge, Anna Diggs Taylor, and it called for further investigation.

"The system relies on judges to exercise good judgment, and we need more information and more explanation about what the court's involvement was in support of the ACLU," said Tom Fitton, president of Judicial Watch, which gained attention in the 1990s for raising legal and ethical charges against President Bill Clinton.

Three legal ethicists interviewed yesterday said that while Taylor's role as a trustee at a nonprofit group supporting the ACLU would not necessarily disqualify her from hearing the high-profile wiretapping case, she probably should have disclosed the connection in court to avoid any appearance of a conflict.

"It certainly would have been prudent" for Taylor to notify the parties in the case about the issue, said Steven Lubet, a law professor at Northwestern University who was an author of Judicial Conduct and Ethics.

"I don't think there's a clear answer as to whether she should have disqualified herself," Lubet said, "but at a minimum she should have disclosed it."

In a case brought by the ACLU's national organization and its Michigan chapter, among others, Taylor ruled last week that the warrantless wiretapping program approved by Bush weeks after the Sept. 11 attacks violated both the Constitution and a 1978 surveillance law passed by Congress. Her ruling, which declared that "there are no hereditary kings in America," threw the future of the counterterrorism program into doubt, as the Justice Department moved immediately to appeal the decision.

Some legal experts saw the decision as an important affirmation of constitutional principles, but even some supporters took issue with her legal reasoning, and Republicans charged that the judge, who was appointed by President Jimmy Carter, was driven by political motives. Questions about a possible conflict appear likely to stir new concerns.

The Web site for the Michigan nonprofit group that supported the ACLU, the Community Foundation for Southeastern Michigan, lists Taylor as a trustee and secretary. It indicates that trustees make all funding decision for the group, which has assets of over $350 million and gives out grants for a variety of community-based projects.

Taylor declined comment on the issue yesterday, and the Community Foundation did not respond to a message seeking comment about what role if any Judge Taylor played in the awarding of the ACLU grants.